Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate Super. Ct. No. CIVRS801732, Martin A. Hildreth, Judge. (Retired judge of the former San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Liebert Cassidy Whitmore, Peter J. Brown, and Judith S. Islas, for Petitioner.
No appearance for Respondent.
Law Offices of Robert M. Moss, Robert M. Moss, and James M. Tillipman for Real Party in Interest.
OPINION
McKINSTER, Acting P. J.
INTRODUCTION
In this matter, we have reviewed the petition, the opposition filed by real party in interest, and petitioner’s reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
This is not a difficult case. We readily conclude that the trial court erred in granting real party in interest’s injunctive relief with respect to petitioner’s obligation to rehire him. Real party in interest provided no authority directly supporting his claim that an employer has a legal obligation to rehire an employee who previously elected to retire for disability but now claims to be recovered. His authorities either involve employees on leave (e.g., Hogan v. Bangor & Aroostook Railroad Company (1st Cir. 1995) 61 F.3d 1034), dicta of no import to the decided case (e.g., Riverside Sheriffs’ Assn. v. County of Riverside (2009) 173 Cal.App.4th 1410 [Fourth Dist., Div. Two]; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34) or are simply inapposite (e.g., Grenier v. Cyanomid Plastics, Inc. (1st Cir. 1995) 70 F.3d 667 (Grenier).)
Real party in interest was not a “temporarily separated” employee; he had retired. The distinction makes a difference. In our view-based, we think, on common sense and common understanding-“retirement” is a generally permanent life choice and reflects the understanding of both parties that the employer/employee relationship has terminated. “Retirement” is not the same thing as “leave of absence, ” and no amount of saying it will make it so. The reinstatement rules-based on the employer’s obligation to reasonably accommodate a temporarily disabled employee with a reasonable medical leave-do not require an employer to keep a spot open for an employee who, by retiring, has either voluntarily severed the relationship or, at the least, implicitly agreed that his or her disability will extend beyond any employer duty to accommodate it.
We recognize, of course, that Government Code section 21193 does obligate the state to reinstate employees who have retired for disability but have recovered. No such obligation is imposed upon public agencies such as petitioner; the statute merely prescribes procedures to be followed if the local public agency offers a position to a retired employee who wishes to return to the workforce. Petitioner has made no such offer. It is perfectly true that, as real party in interest points out, cases (e.g., Grenier, supra, 70 F.3d 667) do allow an employer to request medical clearance from a disability-retired employee-a request that could not be made to an original applicant before a “firm offer” of employment had been made. Petitioner did make such a (lawful) request here. However, this does not lead to the conclusion that the request acts as the legal equivalent of a firm offer of employment. Grenier and similar cases merely say, in essence, that when an employee has retired, claiming inability to perform the job, an employer cannot be required to ignore this known issue but may ask the applicant/retiree to demonstrate current ability to perform the job. Nothing in these cases holds that the request for medical clearance binds the employer to accept the applicant/retiree if clearance is received. We reject real party in interest’s convoluted and unreasonable analysis. Real party in interest had no right to be reinstated, and injunctive relief, in this respect, was unavailable.
Although it is somewhat difficult to parse out real party in interest’s specific claims based on the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), we are satisfied that none has merit. To a large extent, the arguments are circular depending upon the assumption that he was entitled to be reinstated upon demand and building a claim of discrimination on this false premise. Petitioner established that there have been no openings for fire captain since real party in interest completed the requalification process. Hence, whatever “slights and snubs” real party in interest might have endured in the past, there has been no “adverse employment action” of which he can colorably complain at this point. We also decline to read Government Code section 12940, subdivision (n), to require a public agency to engage in an “interactive process” concerning “reasonable accommodation” with an applicant to whom it does not intend to offer employment. We acknowledge, of course, that if the eventual failure to offer employment is based upon an unlawfully discriminatory motive, real party in interest will have a cause or causes of action. At this time he does not.
DISPOSITION
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order granting real party in interest’s motion for summary adjudication and to enter a new order denying said motion; and to vacate its order denying petitioner’s motion for summary adjudication as to counts 2 through 6, and to enter a new order granting petitioner’s motion for summary judgment.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
The previously ordered stay is lifted.
Petitioner to recover its costs.
We concur: HOLLENHORST, J., RICHLI, J.